Appeal of SCHOOL IN THE SQUARE PUBLIC CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,866

(February 4, 2016)

Cohen Schneider & O’Neill LLP, attorneys for petitioner, Susan R. Briggs, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Thomas B. Roberts, Esq., of counsel

ELIA, Commissioner.--Petitioner, School in the Square Public Charter School (“the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it a co-location site in a public school building or space in a privately-owned or publicly-owned facility at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e).  The appeal must be sustained in part.

Petitioner is a charter school authorized by the Board of Regents to serve students in grades six through eight.  Its initial charter was issued on November 17, 2015 for a five-year term in accordance with Education Law §§2851(2)(p) and 2853(1)(a).  It is scheduled to commence instruction in the 2016-2017 school year serving grade six and will add grade seven in the 2017-2018 school year and grade eight in the 2018-2019 school year.

By letter to DOE dated January 27, 2015, petitioner requested co-location in a public school building in accordance with Education Law §2853(3)(e).  By letter dated December 17, 2015, DOE acknowledged petitioner’s request, but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it any facilities in violation of Education Law §2853(3)(e) and that such failure was arbitrary and capricious or an abuse of discretion.  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5) beginning with the 2016-2017 school year and continuing thereafter.

Respondent requests that the appeal be dismissed in its entirety.[1]

Preliminarily, I note that this appeal was commenced pursuant to Education Law §2853(3)(e), which was added by Part BB of Chapter 56 of the Laws of 2014.  Education Law §2853(3)(e)(3) provides that a charter school in the City School District of the City of New York shall have the option of appealing the “city school district’s offer or failure to offer a co-location site through ... an expedited appeal to the commissioner” pursuant to Education Law §310 and the procedures prescribed in Education Law §2853(3)(a-5).  Pursuant to Education Law §2853(3)(e)(3), in any such appeal, the standard of review shall be the standard prescribed in Civil Practice Law and Rules (“CPLR”) §7803.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner asserts that DOE failed to offer it a co-location site in a public school building or space in a privately-owned or other publicly-owned facility at no cost to petitioner.  Education Law §2853(3)(e) provides that in the City School District of the City of New York, charter schools that are approved by their charter entity to first commence instruction for the 2014–2015 school year or thereafter and request co-location in a public school building shall be provided access to facilities.  The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately-owned or other publicly-owned facility at the expense of the city school district and at no expense to the charter school (Education Law §2853[3][e][1]).

Here, the record indicates that in its December 17, 2015 response to petitioner’s request for co-location space, DOE stated that it would “not be extending an offer of space at this time.”  However, in the event that DOE did not offer petitioner a co-location site in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately-owned or other publicly-owned facility at the expense of the city school district and at no expense to petitioner.  Instead, DOE indicated in its December 17, 2015 response only that it would not be extending an offer of space.  As it did not offer petitioner space in a privately-owned or other publicly-owned facility at the expense of the city school district and at no expense to petitioner, DOE failed to comply with the requirements of Education Law §2853(3)(e)(1).

The standard of review in an appeal pursuant to Education Law §2853(3)(e) is the standard prescribed in CPLR §7803, which lists questions that may be raised in a proceeding brought pursuant to Article 78.  The question set forth in CPLR §7803(1) is whether the body or officer failed to perform a duty enjoined upon it by law.  The question set forth in CPLR §7803(3) is whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.  Although Education Law §2853(3)(e)(3) does not specify which specific provision of CPLR §7803 applies, I find that under either subdivision (1) or (3), petitioner has carried its burden of establishing the facts and law upon which it seeks relief.

In accordance with Education Law §2853(3)(e)(5), DOE is therefore required to pay rental assistance based on student enrollment in all grades for which petitioner has been approved to provide instruction during the term of its charter (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690).  I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment, not the enrollment projections set forth in the charter, for each year of the charter term.  Specifically, with respect to a new charter school whose charter is granted before October 1, 2016, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to ... the formation of the new charter school that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and (i) for a new charter school that first commences instruction on or after July first, [2014], the charter school’s current year enrollment ...” (Education Law §2853[3][e][5]).

The amounts payable to a charter school in its first year of operation shall be based on the projections of initial-year enrollment set forth in the charter until actual enrollment is reported to the school district by the charter school (see Education Law §2856[1][b]).  Such projections shall be reconciled with the actual enrollment at the end of the school’s first year of operation, and any adjustment shall be made to payments during the school’s second year of operation (see Education Law §2856[1][b]).

The record in this case indicates that the school will first commence instruction in the 2016–2017 school year serving students in grade six.  In 2017-2018, the school will begin serving students in grade seven and, in 2018-2019, students in grade eight.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner in each year of the charter the lesser of the actual rental cost of an alternative privately-owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year (e.g., the 2016-2017 school year enrollment in the first year) and petitioner’s enrollment for the current school year (e.g., initially the projected 2016-2017 school year in the first year).  As noted above, DOE is obligated to pay for all the grades in the newly-opened charter school in each year of the initial charter term; the amount payable must be based on the charter school’s actual current year enrollment (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690).

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner the lesser of the actual rental cost of an alternative privately-owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year and petitioner’s current year enrollment.

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